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First-party and third-party special needs trusts protect benefit eligibility

By Hook Law Center

Individuals with special needs often depend on government benefits in order to afford things that many of us take for granted — including health care, education, healthy food and a safe home. But when someone with special needs acquires significant assets for any reason, their eligibility for government benefits may be jeopardized. Special needs trusts hold these assets outside the ownership of those individuals, but allow the money to be spent on their behalf, thereby enriching their lives without endangering their eligibility for benefits.

A third-party special needs trust is the most common type. The trust is created by a third party, using that person’s assets, and names the special needs individual as the beneficiary. These assets are commonly transferred into the trust upon the death of the trust’s creator, or grantor, through a will, life insurance or beneficiary designation.

Less widely known, but equally important, are first-party special needs trusts. Such a trust is created by the special needs individual, using his or her own assets for his or her own benefit. These assets could be the result of a personal injury award, a divorce settlement, a life insurance policy or other circumstances.

In both cases, the trustee — the individual in charge of administering the trust — uses the funds within the trust to support the person with special needs. The rules governing the trust’s expenditures must be followed closely, as any improper use of the funds could endanger government benefits. But the rules do allow a wide variety of life-enriching purchases, including personal services, hobbies, luxury items and vacations.

There are many different varieties of trusts. The help of an experienced special needs attorney is very important in properly creating and administering a special needs trust.

Posted on Friday, March 28th, 2014. Filed under Medicaid.

Elder advocacy group urges Congress to help seniors in 2014

By Hook Law Center

The National Council on Aging (NCOA) recently released a list of five recommendations for Congress to help American seniors in 2014.

1. Strengthen the Older Americans Act (OAA).

The OAA provides funding for critical services for seniors living independently at home, including nutrition, disease prevention, transportation and caregiver support. NCOA claims that funding has not kept pace with inflation or with the growing number of seniors, and that it has been further cut by the federal budget sequester. NCOA suggests that the OAA is overdue for reauthorization and should be both reauthorized and strengthened.

2. Make the Medicare QI program permanent.

The Medicare Qualified Individual (QI) program covers Medicare Part B premiums for seniors with income levels of 120-135% of the poverty level, helping low-income seniors afford visits to their doctors. QI has expired and been temporarily extended by Congress each year for several years. NCOA recommends Congress make the program permanent.

3. Renew the Farm Bill.

Upon renewal, the Farm Bill may increase funding for food banks and nutritional programs for seniors. However, Congress is pursuing cuts to the Supplemental Nutrition Assistance Program (SNAP).

4. Introduce long-term care legislation.

Medicare does not cover long-term care; private insurance is too expensive for many, and Medicaid forces seniors to spend or give away their life savings before qualifying. Recently, the Long-Term Care Commission issued a report with recommendations for improving the situation. NCOA calls for a bipartisan effort to introduce reform legislation that would provide affordable options for families and savings for Medicaid.

5. Pass immigration reform.

NCOA says 20-23% of direct care workers (such as nursing aides and home health aides) are foreign-born. Immigration reform could help strengthen that workforce.

Posted on Friday, March 14th, 2014. Filed under Estate Planning, Long-Term Care, Medicaid, Public Benefits, Senior Law News.

Medicaid Rule Change Strengthens Home- and Community-Based Care

By Hook Law Center

Millions of low- and fixed-income Americans depend on Medicaid for health care. Many are fortunate enough to receive that care in their homes or at nearby facilities. Unfortunately, some have no choice but to receive treatment in nursing homes and in other institutional settings that may be nowhere near their homes, friends and family. Such situations are widely recognized to be less conducive to a patient’s overall well-being.

The Centers for Medicare and Medicaid Services (CMS), the federal agency that oversees those programs, recently announced new rules to strengthen the Community Living Initiative — a program launched in 2009 to develop strategies to increase Medicaid recipients’ opportunities for care in home- and community-based settings (HCBS).

The new rules set definitions for HCBS and specify that Medicaid will support HCBS programs that offer an alternative to care in institutional settings and that take into account a patient’s quality of life. States will be granted a transitional period during which they can ensure their HCBS programs meet requirements. During this period, states will be provided with technical assistance.

The new rules give states more options for expanding HCBS and for targeting specific segments of the population. They also streamline regulatory and documentation procedures for more efficient operations.

The elderly, ill, disabled and low-income populations are all vulnerable to marginalization. Institutionalized care, while necessary and beneficial for some, can be a prime example of such marginalization when not medically necessary. Those who will become able to receive care in their homes and communities because of these changes stand to benefit immensely from the CMS’s new rules.

Posted on Friday, February 28th, 2014. Filed under Medicaid.

Diversify Retirement Savings Beyond Pensions

By Hook Law Center

Workers with defined-contribution plans, such as 401(k)s and IRAs, know that the value of their retirement savings can fluctuate with the ups and downs of the economy. The markets tend to grow savings in the long run, but nothing is certain.

In comparison, those with defined-benefit plans – pensions – tend to feel a lot more secure about their post-retirement income, and with good reason: pensions are reliable. Private pensions are insured by the Pension Benefit Guaranty Corporation, an independent government agency, and government pensions are considered rock-solid.

The city of Detroit’s recent bankruptcy filing, however, might give those government pensioners and future pensioners pause. Pensions represent a huge and growing share of the city’s expenses that contributes significantly to its dire financial straits. If Detroit’s bankruptcy is allowed to continue – it is currently held up in court – it may very well mean that pension promises are broken and retirees’ benefits will be cut.

When planning for retirement, it is important to diversify your savings and your post-retirement income. No matter how large and reliable your pension, it should not constitute the entirety of your nest egg. Remember, many state and local government workers are not covered by Social Security.

If you have an option to contribute to a supplemental retirement plan, such as a 403(b) or 457(b) account, do so. If not, set up your own IRA, even if your contributions will not be tax-deductible. Consult with an estate planning attorney to decide on the right mix of contributions to pension funds and individual retirement accounts.

Posted on Tuesday, October 29th, 2013. Filed under Estate Planning, Medicaid, Senior Law News.

Parents and Private Organizations Bridge Funding Gap for Playgrounds for Special-Needs Children

By Hook Law Center

Children with special needs and their advocates have made significant progress in their efforts to ensure that all children are afforded the opportunity to learn and thrive regardless of their abilities. The Americans with Disabilities Act (ADA) of 1990 was an important milestone in this regard.

One area in which there is still work to be done is in the way children with special needs are enabled to play with their peers. Specifically, playgrounds are often completely impractical for children with physical disabilities. Their ground surfaces may be impossible for wheelchairs to roll over, and their play areas may not have activities appropriate for children lacking in upper-body mobility, strength, and balance.

Last year, accessibility standards for playgrounds were made mandatory under the ADA so that children of differing abilities could play alongside each other. They include rules on the types of equipment, designs, and materials used in public playgrounds. But those inclusive standards can add significantly to the cost of building playgrounds.

A recent NPR report told the story of a family in Pocatello, Idaho, that led a fundraising effort to build a community playground that was accessible and fun for kids of all ability levels. It is Brooklyn’s Playground, named after the family’s wheelchair-bound seven-year-old daughter. Its wide ramps and smooth rubber ground coverings allow wheelchairs to reach all areas, and its swings have back support for children with upper-body disorders.

At 15,000 square feet and a cost of just over half a million dollars, most municipalities could not afford to build such a playground, but Brooklyn’s family spent eight months soliciting donations and organizing bake sales to make it happen.

When advocates and families work together to give special-needs children every possible opportunity, the entire community benefits.

Posted on Tuesday, October 15th, 2013. Filed under Medicaid, Public Benefits.

Cross-Country Cyclists Raise Awareness for Special-Needs Children

By Hook Law Center

Eleven women braved a month-long endurance challenge to raise awareness for special-needs children.

The women bicycled 1,500 miles through nine states and over two dozen cities, pedaling through sweltering summer afternoons and drenching rains for the first-ever women’s Bike 4 Friendship. Men’s cross-country Bike 4 Friendship trips were held in 2011 and 2012, and a third is currently underway.

The events are organized by The Friendship Circle, a Jewish organization for special-needs children and families with 79 locations around the world.

The cyclists set out on June 30, 2013, from Friendship Circle of Miami in Pinecrest, Fla. At 10 a.m., Pinecrest mayor Cindy Lerner cut the starting-line ribbon, and the cyclists began their journey. Lerner also issued a proclamation naming June 30 “Bike 4 Friendship Day.”

Before the cyclists set foot to pedal, the event had already raised $100,000. The trip was scheduled to end on July 28 in Manhattan’s Upper West Side.

Special-needs children face huge challenges in dealing with aspects of daily life that many of us take for granted. Community resources like The Friendship Circle are indispensable. It is difficult to overstate the benefits that children and families can receive from networking and socializing with others who face similar challenges.

Individuals who go to such great lengths to raise funds and awareness for special-needs children deserve great respect. Their selfless actions do a great deal for struggling families.

Posted on Monday, August 26th, 2013. Filed under Estate Planning, Medicaid.

Social Security Financial Outlook Report Forecasts Trust Fund Depletion

By Hook Law Center

Each year, the Social Security Board of Trustees releases its yearly report on the long-term financial outlook of the Social Security Trust Funds. The report includes projections for when those trust funds will be depleted.

Social Security holds reserves in two trust funds: one for Old-Age and Survivors Insurance, and another for Disability Insurance. Both of these programs are funded by payroll taxes. When tax revenue exceeds benefit payouts, the trust funds grow; when payouts exceed revenues, they shrink.

According to the Board’s recently-released report, the Disability Insurance trust fund is projected to be fully depleted in 2016. At that point, ongoing revenues are projected to pay for just 80 percent of scheduled benefits.

The Old-Age and Survivors Insurance trust fund is in somewhat better shape. It is projected to be depleted in 2033, the report said, at which time revenues will pay 77 percent of benefits.

These figures are based on the government’s best estimates for the variables involved, including economic and population forecasts. Congress will presumably act before allowing programs on which so many Americans depend to suffer such severe budget shortfalls. However, the apparent lack of action on Capitol Hill despite the fact that the disability trust fund’s projected depletion is just three years away is troubling in itself. If the economy’s slow recovery does not pick up or if the sharp recent growth in disability beneficiaries continues, the Board’s estimates might in fact turn out to be optimistic.

At Hook Law Center, we advocate for a robust Social Security system that remains solvent far into the future. Our estate planning attorneys know that your Social Security benefits are a key part of your financial security.

Posted on Monday, July 22nd, 2013. Filed under Estate Planning, Long-Term Care, Medicaid.

What is Medicare Advantage?

By Hook Law Center

Medicare Advantage is an alternative to regular Medicare created by Congress in an attempt to cut costs in 1997. It is a managed care plan administered by a private provider instead of state governments. It has certain pros and cons when compared with regular Medicare. Read on to learn about Medicare Advantage and see if it is right for you.

Medicare Advantage patients are generally subject to a small copayment whenever they see a doctor, after which the visit is completely covered. This is in contrast to having to pay a deductible and then coinsurance – typically 20 percent – which is usually the case under regular Medicare. This generally eliminates the need for a supplemental Medigap policy.

Another attractive feature of Medicare Advantage plans is that they usually cover products and services not covered by regular Medicare, such as prescription drugs and custodial care. Some also cover hearing and vision care, gym memberships, and other services.

These perks do not come without a cost. The primary method by which Medicare Advantage plan providers reduce expenses is limiting the doctors and other providers that a patient can see to a particular network. If a patient voluntarily sees out-of-network providers, they must pay the full cost. However, if a patient’s in-network physician orders medical services not offered by any in-network provider, the Medicare Advantage plan is required by law to pay for those services at an out-of-network provider as long as those services are normally covered by Medicare.

Another cost-cutting measure is to prohibit patients from seeing specialists on their own; patients must be referred to specialists by their primary care physicians. However, plan administrators strongly discourage physicians from referring patients to specialists unless it is absolutely necessary.

These are the primary differences between regular Medicare and Medicare Advantage. If you need to reduce your medical costs and do not mind having to see only in-network health care providers, Medicare Advantage may be right for you.

Posted on Wednesday, June 26th, 2013. Filed under Medicaid.

Americans Support Raising Taxes to Protect Social Security

By Hook Law Center

Despite years of debate on Capitol Hill, Congress has failed to act on Social Security reform.
Any reform proposal with a fighting chance would likely include an increase in payroll taxes.
Would the American public support such measures?

Recently, the National Academy of Social Insurance (NASI) surveyed 2,000 Americans to determine what reforms they would support in order to shore up Social Security. NASI found that 82 percent of respondents would support increasing taxes on working Americans, while 87 percent would support taxing the wealthy. Eighty-two percent of those respondents with incomes over $100,000 per year supported the idea of raising their own taxes.

Although Democrats and Independents were disproportionately likely to support tax hikes, nearly three quarters of Republicans supported increasing taxes.

The survey also asked respondents to choose from a range of hypothetical packages of adjustments to benefits and tax revenue. Not only did respondents show a willingness to raise taxes enough to close the projected financing gap, but, 71 percent preferred a package that would simultaneously increase benefits.

These measures would:

  • phase out the cap on earnings subject to payroll taxes so that all workers pay into Social Security throughout the year;
  • gradually raise the rate at which workers and employers are taxed from 6.2 percent to 7.2 percent;
  • raise the minimum Social Security benefit so that workers who paid into the system for 30 years could exceed the poverty line solely through Social Security income; and
  • increase cost-of-living adjustments (COLA) to better reflect real-world price inflation.

In contrast, the options that hurt a package’s appeal among respondents included such cost-control measures as raising the retirement age to 70 years old and enacting means-testing for benefit eligibility.

The elder law attorneys at Hook Law Center assist Virginia families with will preparation, trust & estate administration, guardianships and conservatorships, long-term care planning, special needs planning, veterans benefits, and more.

Posted on Thursday, April 25th, 2013. Filed under Long-Term Care, Medicaid, Senior Law News.

Long-Distance Caregiving

By Hook Law Center

Question – I live in a different city than my parents. Keeping in touch by telephone and making long trips to help my parents with their needs is very time-consuming and not nearly as effective as being available full-time in person. What are my options to make this easier for me but to also make sure they are taken care of.

Hook Law Center Answer – Living in a different city or state, miles from aging parents, can be difficult.

The long-distance caregiver is a new role that is thrust upon children and younger family members. Families used to live closer together, with children residing and working near their parents. But nowadays family members are more distant from each other. Society, today, is recognizing this. Some caregiver services have tweaked their programs to work as liaisons between long-distance caregivers, senior loved ones, and local medical professionals.

Professional care managers, also known as geriatric care managers, elder care managers or aging care managers, represent a growing trend to help full time, employed family caregivers provide care for loved ones. Care managers are expert in assisting caregivers, friends or family members find government-paid and private resources to help with long-term care decisions.

They are professionals who are trained to evaluate and recommend care for the aged. A care manager might be a nurse, social worker, psychologist, or gerontologist who specializes in assessing the abilities and needs of the elderly. Care manger professionals are also becoming extremely popular as the caretaker liaison between long-distance family members and their aging loved ones.

The most important thing is to find a geriatric care manager where your loved one lives. This geriatric care manager will have knowledge of all the services in the area and can be your eyes and ears.

Posted on Thursday, January 31st, 2013. Filed under Long-Term Care, Medicaid.
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